Incisive commentary from leading voices in the world of compliance

Should conditions be attached to the return of Abacha’s loot to Nigeria?

The Honourable Attorney General and Minister of Justice of the Federal Republic of Nigeria, Abubakar Malami SAN, recently signed a deal on behalf of the Federal Government of Nigeria with the Swiss Government and the World Bank on how assets recovered from the family of the late Nigerian Head of State, General Sani Abacha, would be repatriated to the Nigerian Government.

The restitution agreement signed at the Washington DC Headquarters of the World Bank in the United States paves the way for the return of US$321 million within the next two to three years.

This money represents the outstanding balance of the over $1 billion recovered. In the last ten years, the Swiss government has repatriated about $700 million back to the Nigerian Government.

According to the Agreement, the money is going be paid in tranches and in small amounts, to finance projects in the area of National Social Safety Net.

The World Bank defines Social Safety Net (SSN) as a set of non-contributory transfers targeted in some way to the poor and vulnerable.

SSN programmes are aimed at poverty alleviation, reducing inequality, and social protection.

SSN programmes cover areas of basic needs of human life, such as areas of education, housing, health, and water.

The SSN projects to be financed with the $321 million recovered loot would be agreed upon with the Nigerian Government while implementation of the projects would be supervised by the World Bank.

The aim is to strengthen social security for the poorest sections of the Nigerian population.

If the first tranche of the money is not properly accounted for, subsequent tranches will not be paid.

According to the Swiss government, the agreement is in line with its policy on returning the proceeds of corruption and would set a good example for future cases.

While this is good news for Nigeria as a victim of corruption, the question is why Nigeria is given conditions for the return of its stolen money?

The United Nations Convention Against Corruption (UNCAC) provides the international legal framework for the recovery of proceeds of corruption.

Article 51 enjoins State Parties to afford one another the widest measure of cooperation and assistance in the recovery of stolen assets.

According Article 57, confiscated illegally acquired property shall be disposed of, including returning it to its rightful owner in accordance with the provision of UNCAC and the domestic law of the requested state party.

In this regard, within the context of UNCAC 2004 and Foreign Illicit Assets Act (FIAA) 2015 section 5, the Swiss government is acting within its powers.

FIAA 2015 section 5 is the Swiss legislation that governs the restitution of confiscated assets to the countries of origin.

The objectives of returning stolen assets to the countries of origin as enunciated by Section 5, Article 17, is to improve the living condition of the inhabitants of the country of origin.

Secondly, to fight corruption in the country of origin by strengthening the country’s rule of law.

According to the agreement signed by the two governments, the return of the $321 million is to finance projects aimed at improving the welfare of the disadvantaged segment of the Nigerian masses.

The Swiss government also has the power to negotiate the procedure of returning the stolen assets. Article 18 stated that the restitution is made through the financing of programmes of public interest.

For this reason, the Swiss government may conclude agreements governing the restitution of confiscated assets with the country of origin.

Such agreements may determine the programmes of public interest to be funded with the returned assets; the way the return assets are to be used; the parties to be included in the return process; and control and monitoring of returned assets are spent.

Also, the involvement of the World Bank in the process of returning the $321 million to the Nigerian government is in line with the provision of UNCAC 2004 and FIAA 2015 section 5, which provides that if possible, non-governmental organisations are to be involved in the restitution process.

In fact, where there is no agreement with the country of origin, the Swiss government is to determine the process of restitution.

On the part of Nigeria, it appears that there is no law preventing the Nigerian government from negotiating the terms of getting back the country’s looted assets.

As such, the Nigerian government has been and is still seeking the assistance of foreign nations for the confiscation and return of its stolen assets.

It can be inferred from this deal that Nigeria is ready to cooperate with foreign nations, in as far as they are willing and able to confiscate and return looted assets.

UNCAC 2004 made it a condition that, the return of confiscated assets should be on the basis of final judgement in the requesting states party (in this case Nigeria).

What this means is that, as a requirement for seeking the return of looted assets, the requesting state must obtain a final judgement against the defendant and/or the assets from its domestic courts.

However, this requirement can be waived by the requested state party (in this case Switzerland).

Above all, consideration should also be given to the attitude of the government of the requesting state to corruption.

Thus, governments should be treated on case-by-case basis. Where the government has zero-tolerance to corruption, then it should be trusted with the management of the recovered loot.

Although Nigerian governments have a reputation of being corrupt, the incumbent government of President Muhammadu Buhari has made tackling corruption a priority.

Furthermore, Nigeria is not short of a legal and institutional framework to fight corruption. Of late, the government sought to re-activate a law that was rarely heard of – The Recovery of Public Property (Special Provision) Act 1984.

However, as President Buhari and his trustworthy lieutenants cannot be everywhere at all times, there is no guarantee that the $321 million would not be stolen again.

Dr Sirajo Yakubu is an independent researcher and consultant in the areas of Economic Crime, and International and Commercial Law (World Trade Specialist).

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